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USMC | DRB | 2003_Marine | MD03-00538
Original file (MD03-00538.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-Pvt, USMC
Docket No. MD03-00538

Applicant’s Request
The application for discharge review was received on 20030204. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Issues, as stated

 Applicant’s issues, as stated on the application:

1. “The base authorities assumed I was on drugs and I was not. I was never checked by medical professionals to see if I was on drugs, it was just assumed by the base authorities. I had a tumor on my adrenaline gland and it caused my blood pressure to rise drastically.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s civilian medical records (63 pp.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880621 - 880717  COG

 Period of Service Under Review :
Date of Enlistment: 880718               Date of Discharge: 890721

 Length of Service (years, months, days):

         Active: 01 00 04
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.1 (4)                       Conduct: 2.9 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

890403:  Counseled for deficiencies in performance and conduct. [Incapacitation for performance of duties through intentional over-dose attempt with a controlled substance/medication, suspect to a personality disorder.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890407:  Psychology Clinic, NHCP. Patient admitted for 9 days after ingesting 15-20 Valium in the context of marital discord.
         Diagnosis. Axis I: R/O Alcohol abuse.
                           Occupational problem.
 Axis II: Personality Disorder NOS with borderline, antisocial,
narcissitic and dependent features 301.90.
         Applicant presents a continuing risk of harm to self/others if retained in the USMC and this risk increases with ETOH use.

 890523:  NJP for violation of UCMJ, Article 92:
 Specification: Disobedience of a lawful order given by Gy W_.
Violation of UCMJ, Article 107:
Specification: Making a false statement concerning the location of a .357 pistol.
Violation of UCMJ, Article 128:
Specification: Struck PFC W_ with hands.
Awarded forfeiture of $163.00 per month for 1 month, restriction and extra duties for 14 days, reduction to Pvt. Not appealed.
890614:  Applicant to confinement.

890630:  Charges preferred to special court-martial for violation of the UCMJ, Article 86: Unauthorized absence from 0530-2009, 890609 and violation of the UCMJ, Article 115: Intentionally injure himself by slashing his wrist on 890609 for the purpose of avoiding services as an enlisted person.
890711:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86: Unauthorized absence from 0530-2009, 890609 and violation of the UCMJ, Article 115: Intentionally injure himself by slashing his wrist on 890609 for the purpose of avoiding services as an enlisted person.

890711:  Applicant’s statement submitted.

890717:  GCMCA [Commanding General, 3d Marine Aircraft Wing, Santa Ana, CA] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

890720:  Applicant from confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19890721 under other than honorable conditions in lieu of trial by court-martial (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

 Issue 1. On 19890711, the Applicant, after consulting with counsel, requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The Applicant admitted guilt to violations of Articles 86, unauthorized absence, and 115, malingering, of the UCMJ. While he may feel that a medical condition treated in 1995-1996 was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

 The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.











Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence for more than 30 days; Article 115, malingering.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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